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September 6, 2022Read Morearrow_forward
July 6, 2022
On June 2, 2022, Minnesota Governor Tim Walz signed House File (H.F.) 4065 into law, a measure that provides clarity regarding hemp-derived consumables stemming from the Agriculture Improvement Act of 2018, also known as the 2018 Farm Bill. Notably, this law now allows the sale and consumption of “edible cannabinoid” products containing no “more than five milligrams of any tetrahydrocannabinol [THC] in a single serving, or more than a total of 50 milligrams of any [THC] per package.” Notwithstanding the above, marijuana is still illegal in Minnesota; only the THC derived from hemp—in certain amounts—is now legal to consume.
This law is noteworthy as Minnesota, along with numerous other states, begins the slow and gradual process of legalizing marijuana and/or hemp. For example:
For multistate employers, the web of various laws with differing requirements presents a complex problem in tracking these swift changes and ensuring compliance with the laws with respect to drug testing programs, for several reasons.
First, many of the state laws concerning marijuana and hemp differ fairly considerably. Some states only allow hemp, some states only allow marijuana for certain medical purposes (and each state varies in those purposes as well), while other states have legalized and regulated marijuana in general. These divergent requirements, which are changing rapidly, present a complex compliance challenge for fast-paced multistate employers. (For an overview of the current state of marijuana legalization, please see Ogletree Deakins’ State Law Maps resource.)
Second, while keeping track of all of these differing requirements is a challenge, it is even more difficult when employers have drug testing programs in more than one state. Most commonly, employers conduct preemployment, reasonable suspicion, and safety-sensitive (random) drug tests in their programs, all of which become a compliance nightmare due to the changing landscape of laws. Here are a few considerations with respect to each type of test and how Minnesota’s new law and other states’ laws may impact an employer’s drug testing programs.
Given this change in the law, more employees may begin testing positive for THC due to the broad legality of hemp products and the increasing legalization of marijuana in general. Accordingly, it may be time for employers to revisit their drug testing programs and how they view the use of THC for the employee population. More simply, the laws of yesterday may create issues for employers today.
Given the complex issues described above, employers may want to consider reevaluating their drug testing programs. As more states begin legalizing marijuana and loosening restrictions around hemp products, employers may want to engage in a broader conversation about testing for THC and whether it makes business sense (or is required under the law) to do so.
Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments related to marijuana laws in the workplace and will provide updates on the Drug Testing blog. Important information for employers is also available via the firm’s webinar and podcast programs.
Further information on federal, state, and major locality marijuana laws and related issues affecting the workplace is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes.